Incentive Awards; Pay and Leave Administration

SUMMARY: The Office of Personnel Management is issuing interim

regulations to incorporate certain incentive awards and pay and leave

administration rules contained in the provisionally retained Federal

Personnel Manual material, which will sunset on December 31, 1994, into

the Code of Federal Regulations and to remove certain recordkeeping and

reporting requirements.

DATES: The interim rules are effective on January 1, 1995. Comments

must be received on or before February 27, 1995.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,

Acting Assistant Director for Compensation Policy, Office of Personnel

Management, Room 6H31, 1900 E Street NW., Washington, DC 20415.

FOR FURTHER INFORMATION CONTACT:

Barbara Colchao, (202) 606-2720, concerning questions about the interim

regulations for incentive awards in 5 CFR 451, and Belva MacDonald

(202) 606-1413, concerning questions about the interim regulations for

pay and leave administration in 5 CFR 531, 550, 551, 591, and 630.

SUPPLEMENTARY INFORMATION: On September 7, 1993, the Report of the

National Performance Review recommended that the Office of Personnel

Management (OPM) deregulate personnel policy by phasing out the 10,000-

page Federal Personnel Manual (FPM). The FPM Sunset Document published

on December 31, 1993, provided that certain FPM materials would be

provisionally retained through December 31, 1994, to allow time for the

development of any regulations, delegations of authority, or manuals

necessary to authorize agency flexibility or, where required, to

continue Governmentwide uniformity. A small number of miscellaneous

incentive awards and pay and leave administration provisions in the FPM

were retained for these reasons, and OPM is incorporating these

provisions into the Code of Federal Regulations (CFR). These rules

relate to:

(1) Incentive awards--cash award limitations, documentation of

informal recognition items, and eligible award recipients;

(2) Application of the two-step promotion rule for promotions from

GS-1 and GS-2 positions;

(3) Application of leave without pay towards the competition of

waiting periods for within-grade increases;

(4) Counting travel time as ``hours of work'';

(5) Sunday premium pay for periods of paid leave and excused

absence;

(6) Payments during evacuation;

(7) Back pay computations;

(8) Computing cost-of-living allowances for employees receiving pay

retention; and

(9) Leave for uncommon tours of duty.

No new requirements will be established by these regulations. In

addition, in an ongoing effort to reduce administrative burden, OPM has

removed the recordkeeping requirements related to waiving the biweekly

pay cap on premium pay and the reporting requirements for payments

during evacuation. A summary of the provisions included in these

regulations follows.

Incentive Awards

Cash Award Limitations

The interim regulations amend 5 CFR 451.106(b) and 451.107(a)(3) to

clarify that group awards may exceed $10,000 and not require OPM

approval, and may exceed $25,000 and not require Presidential approval,

so long as no individual in the group is granted more than $10,000 or

$25,000, respectively. In the past, agencies have sometimes found

confusing the current law and regulation concerning the maximum cash

awards that can be granted with and without OPM approval. These limits

apply to individuals whether the contribution being recognized was

provided solely by the individual or as part of a group. These interim

regulations do not limit the size of group awards. (These interim

regulations reflect material found in FPM Letter 451-11, Attachment 1,

section 2-2, February 9, 1993.)

Documentation of Informal Recognition Items

The interim regulations amend 5 CFR 451.103 and 451.107(b) to

include a new definition, informal recognition items, to help agencies

distinguish nominal informal recognition items from other nonmonetary

awards and to provide for agency flexibility with respect to

documentation and approval requirements for informal recognition items.

This is consistent with agencies' use of their authority under 5 U.S.C.

4503 to incur expenses for routine recognition items of extremely

nominal value (e.g., pens, buttons, pins, name tags, etc.) and with the

current practice in many agencies under which some routine forms of

recognition, such as career service certificates, which are technically

authorized under 5 U.S.C. 4503, are neither documented in the official

personnel folder nor subject to formal nomination and approval

procedures. (These interim regulations reflect material found in

provisionally retained FPM Letter 451-11, Attachment 4, section 7-5b,

February 9, 1993.)

Eligible Award Recipients

The interim regulations amend 5 CFR 451.104(f) to provide that

awards may be granted to the legal heirs or estates of deceased

employees. (These interim regulations reflect material found in

provisionally retained FPM Chapter 451, Subchapter 3, section 3-2b,

August 14, 1981.)

Application of the Two-Step Promotion Rule for Promotions from GS-1 and

GS-2 Positions

The interim regulations amend 5 CFR 531.204 to provide a method for

determining the dollar value of a two-step promotion when step

increases above step 10 must be calculated for employees promoted from

grades GS-1 and GS-2. Under the interim regulations, at grades GS-1 and

GS-2, for the purposes of promotion or transfer to a higher grade, the

dollar value of each step increase above step 10 equals the dollar

amount of the step increase between step 9 and step 10 of grade GS-1

and GS-2, as appropriate.

The dollar value of step increases at grades GS-1 and GS-2 varies.

Consequently, the dollar amounts of the step increases above step 10

for grades GS-1 and GS-2 cannot be determined uniformly without an

explicit rule. The amendment to Sec. 531.204 provides agencies with

uniform procedures for determining the amounts of the step increases

above step 10 for GS-1 and GS-2 employees. (These interim regulations

reflect guidance found in provisionally retained FPM Letter 531-56,

February 16, 1982.)

Application of Leave Without Pay towards the Completion of Waiting

Periods for Within-Grade Increases

The interim regulations amend 5 CFR 531.406 to provide uniform

procedures for treating the time an employee is in a nonpay status for

the purposes of determining whether the employee has completed a

waiting period for a within-grade increase when the employee's

scheduled tour of duty upon return to duty is different from the tour

of duty at the time the leave without pay (nonpay status) began. The

interim regulations require agencies to use the original tour of duty

(from which the time in a nonpay status was charged) for the following

purposes: (1) crediting the time in a nonpay status toward the

completion of a waiting period for a within-grade increase; and (2)

extending the waiting period if the time in a nonpay status exceeds the

allowable amount.

Currently, the regulations provide that time in a nonpay status is

creditable service in the computation of a waiting period if it does

not exceed an aggregate of (1) 2 workweeks for steps 2, 3, and 4 (or

comparable position in the rate range); (2) 4 workweeks for steps 5, 6,

and 7 (or comparable position in the rate range); and (3) 6 workweeks

for steps 8, 9, and 10 (or comparable position in the rate range). Time

in a nonpay status in excess of the allowable amount extends a waiting

period by the excess amount. The interim regulations ensure that

employees are treated equitably by requiring agencies to compute the

waiting period on the basis of the tour of duty in effect at the time

the employee enters into a nonpay status and not on the tour of duty in

effect at the end of the waiting period. (These interim regulations

reflect guidance found in provisionally retained FPM Letter 531-57,

February 9, 1984.)

Counting Travel Time as ``Hours of Work''

OPM is revising regulatory language in 5 CFR 550.112 and 551.422

regarding an agency's authority to establish a mileage radius from an

employee's official duty station for determining entitlement to

overtime pay for travel. The interim regulations relating to overtime

entitlements under both title 5, United States Code (Sec. 550.112(j)),

and the Fair Labor Standards Act of 1938, as amended (FLSA)

(Sec. 551.422(d)), state that agencies may establish a mileage radius

of not greater than 50 miles to determine whether an employee's travel

is within or outside the limits of the employee's official duty station

for overtime pay purposes. However, the interim regulations provide for

one exception: An agency's definition of an employee's official duty

station for determining overtime pay for travel may not be smaller than

an employee's ``official station and post of duty'' under the Federal

Travel Regulation published by the General Services Administration. (An

agency may establish more than one definition of official duty station

for determining overtime pay for travel to be applied in different

geographic locations. for example, an agency could have a large mileage

radius in a remote rural area and a smaller radius in an urban area.)

The interim regulations establish parallel regulations for travel

time as hours of work under both title 5 and the FLSA. The interim

regulations revise the current requirement regarding travel time as

hours of work under the FLSA so that an agency's definition of an

employee's official duty station (including a mileage radius) that is

used to determine entitlement to overtime pay for travel no longer has

to be the same as that used by the agency to determine an employee's

entitlement to per diem. Similarly, the definition of an employee's

official duty station for purposes of overtime pay for travel need not

necessarily be the same as that used to determine an employee's

entitlement to locality pay, interim geographic adjustments, or special

pay adjustments for law enforcement officers. Agencies may have

different definitions of official duty station for different purposes.

For example, the official duty station named on a notification of

personnel action and used for geographic pay determinations must be a

specific city, county, and state (or county and state in rural areas)

to avoid confusion about entitlement to geographic pay entitlements.

(These interim regulations revise guidance for travel time as hours of

work under the FLSA found in provisionally retained FPM Letter 551-11,

October 14, 1977, and incorporate similar provisions for FLSA-exempt

employees. See former FPM letter 550-74, December 29, 1980.)

In addition, the interim regulations (for FLSA-exempt employees)

provide in Sec. 550.112(j)(2) that travel time between home and work is

not hours of work and that the normal time spent in travel between home

and work will be deducted from time spent traveling between home and a

temporary duty location. This is parallel to current regulations in

Sec. 551.422(b) for determining overtime pay under the FLSA.

Sunday Premium Pay for Periods of Paid Leave and Excused Absence

The interim regulations in 5 CFR 550.171 revise the Sunday premium

pay regulations in accordance with the decision of the United States

Court of Appeals for the Federal Circuit in Armitage, et al. v. United

States that employees who are regularly scheduled to work on Sunday are

entitled to Sunday premium pay for periods of paid leave taken on

Sundays. The regulations also state that employees covered by

compressed work schedules are entitled to Sunday premium pay for the

number of hours they are scheduled to work on Sundays. (These interim

regulations reflect guidance found in provisionally retained FPM Letter

550-79, August 20, 1993.)

Payments During Evacuation

The interim regulations incorporate into 5 CFR part 550, subpart D,

regulations published in FPM Supplement 990-2, Book 550, Appendix A,

that may be adopted by agencies for making payments during evacuation

in the United States and certain nonforeign areas. Governmentwide

coordination of these regulations for Federal agencies is required by

Executive Order 10982 of December 25, 1961. (The Secretary of State has

prescribed similar regulations for civilian employees of Federal

agencies who are located in foreign areas. These regulations are found

in the Standardized Regulations (Government Civilians, Foreign Areas).)

The regulations provide for payments during an evacuation to

employees or their dependents, or both, who are ordered to evacuate

from or within United States areas because of imminent danger to their

lives, such as natural disasters, or for military or other reasons.

Currently, if an agency adopts the agency regulations published in

the FPM, the agency is required to notify OPM of the date of adoption

and of the areas in which the regulations would be applied. The interim

regulations delete this notification requirement. Also, the interim

regulations delete requirements for agency evacuation reports; however,

each agency should develop its own internal monitoring system to ensure

that its payments conform to the regulations. As required by section

4(b) of E.O. 10982, an agency that proposes to follow rules that differ

from these regulations must secure prior approval from OPM. (These

interim regulations reflect regulations found in provisionally retained

FPM Supplement 990-2, Book 550, Appendix A. OPM does not plan to

continue publishing the list of agencies having approved agency

regulations for advance and evacuation payments that were published in

provisionally retained FPM Supplement 990-2, Book 550, Appendix B.)

Back Pay Computations

The interim regulations clarify in 5 CFR 550.805(e)(1) that

outside, ``moonlight'' employment engaged in by the employee both while

Federally employed and erroneously separated is not to be deducted when

computing the amount of back pay.

The regulations also revise the back pay computation rules in

Sec. 550.805(e)(2) by identifying the erroneous payments that must be

deducted from a back pay award and enumerating the order in which such

payments must be recovered. When an employee separates or retires from

the Federal service, the employee typically receives certain payments,

such as a refund of the employee's retirement contributions, severance

pay, and/or a lump-sum payment for unused annual leave, as applicable.

If the employee retires, he or she may also receive an annuity, and his

or her health benefits and life insurance may be continued. When an

employee is separated or retired from the Federal service because of an

unwarranted or unjustified personnel action, such payments must be

recovered by the Federal Government upon the employee's return to

service. (These interim regulations reflect guidance found in

provisionally retained FPM supplement 990-2, Book 550, subchapter S8.)

Computing Cost-of-Living Allowances for Employees Receiving Pay

Retention

The interim regulations in 5 CFR 591.210 incorporate OPM's policy

that an employee on pay retention who is entitled to a cost-of-living

allowance or post differential is entitled to an allowance or

differential computed as a percentage of his or her retained rate.

(These interim regulations reflect guidance found in provisionally

retained FPM Letter 591-50, July 26, 1989.)

Leave for Uncommon Tours of Duty

The interim regulations include a definition of ``uncommon tour of

duty'' in 5 CFR 630.201, remove and reserve Sec. 630.205, and revise

Sec. 630.210 to clarify how leave is accrued and charged when an agency

establishes a special leave accrual and usage methodology for employees

on uncommon tours of duty, such as firefighters who have 144-hour

biweekly schedules (i.e., six 24-hour shifts).

The leave accrual rates for such employees must be directly

proportionate to the rates for employees who accrue and use leave on

the basis of an 80-hour biweekly schedule. For example, if a

firefighter's leave is accrued and used on the basis of a 144-hour

biweekly schedule, then the maximum annual leave accrual rate would be

14 hours per biweekly pay period, instead of the standard rate of 8

hours per biweekly pay period. (When 8 hours is multiplied by the

factor of 144/80, the product is approximately 14. A special accrual

rate of 24 hours would be used for the last full pay period in the

calendar year to ensure equivalence in leave accrual over the entire

year.) Such a firefighter would be charged leave proportionally for any

applicable period of absence during the 144-hour uncommon tour of duty.

In addition, the regulations clarify how leave balances are

recomputed for employees who convert to a different tour of duty for

leave purposes. Leave balances must be converted to the proper number

of hours based on the proportion of hours in the new tour of duty

compared to the former tour of duty. For example, if a firefighter who

accrues and uses leave based on a 144-hour biweekly tour of duty

converts to a position in which he or she accrues and uses leave based

on an 80-hour biweekly tour of duty, the converted leave balance is

computed by multiplying the former balance by the factor of 80/144.

(These interim regulations reflect guidance found in provisionally

retained FPM Supplement 990-2, Book 630, S2-6b.)

Removal of Recordkeeping Requirements when Biweekly Pay Caps on

Premium Pay Are Waived

The interim regulations eliminate the requirement in 5 CFR

550.106(d) that agencies document each determination to pay premium pay

under the annual limitation for work performed in connection with an

emergency. (Final regulations allowing agencies to waive the biweekly

limitation on premium pay during an emergency, as provided by section

204 of the Federal Employees Pay Comparability Act of 1990, were

published at 57 FR 31630, July 17, 1992.)

Agencies have found it difficult to retrieve the data necessary to

comply with this recordkeeping requirement. Therefore, OPM is amending

its regulations to eliminate the need to document and keep certain

records related to an emergency when an agency waives the biweekly

premium pay limitation and uses the maximum annual earnings limitation

for premium pay in its place. (These interim regulations are part of

OPM's ongoing effort to reduce administrative burdens consistent with

the goals of the National Performance Review.)

Waiver of Notice of Proposed Rule Making and Delay in Effective

Date

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists

for waiving the general notice of proposed rulemaking and making this

rule effective in less than 30 days. These interim regulations reflect

guidance found in provisionally retained FPM materials that will sunset

on December 31, 1994. The delay in effective date is being waived to

permit continuity in administering Governmentwide pay and leave

administration rules.

Regulatory Flexibility Act

I certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

will affect only Federal employees and agencies.

Executive Order 12866, Regulatory Review

This rule has been reviewed by the Office of Management and Budget

in accordance with Executive Order 12866

List of Subjects in 5 CFR Parts 451, 531, 550, 551, 591, and 630

Administrative practice and procedure; Claims; Decorations, medals,

awards; Government employees; Law enforcement officers; Travel and

transportation expenses; Wages.

U.S. Office of Personnel Management

James B. King,

Director.

Accordingly, OPM is amending parts 451, 531, 550, 591, and 630 of

title 5 of the Code of Federal Regulations as follows:

PART 451--INCENTIVE AWARDS

1. The authority citation for part 451 continues to read as

follows:

Authority: 5 U.S.C. 4501-4507.

2. In Sec. 451.103, a new definition, informal recognition items,

is added to read as follows:

Sec. 451.103 Definitions.

* * * * *

Informal recognition items means items of extremely nominal value

granted as immediate, informal recognition of employee accomplishment.

* * * * *

3. In Sec. 451.104, paragraphs (f) through (j) are redesignated as

paragraphs (g) through (k), respectively, and a new paragraph (f) is

added to read as follows:

Sec. 451.104 Policy.

* * * * *

(f) An award under this subpart may be granted to the legal heir or

estate of a deceased employee.

* * * * *

4. In Sec. 451.106, paragraph (b) is revised to read as follows:

Sec. 451.106 Responsibilities of the Office of Personnel Management.

* * * * *

(b) OPM shall review and approve or disapprove all recommendations

for agency awards under this subpart that would grant an individual

employee an award in excess of $10,000 but not over $25,000.

5. In Sec. 451.107, paragraph (a)(3) is revised, paragraph (b) is

redesignated as paragraph (c), and new paragraph (b) is added to read

as follows:

Sec. 451.107 Agency responsibilities.

(a) * * *

(3) Award recommendations that would grant an individual employee

an award in excess of $10,000 but not over $25,000; and

* * * * *

(b) Agencies that make expenditures for informal recognition items

for distribution to employees shall establish criteria and procedures

for granting and, as appropriate, documenting informal recognition

items and for distinguishing such items from formal nonmonetary awards

granted under this part.

* * * * *

PART 531--PAY UNDER THE GENERAL SCHEDULE

6. The authority citation for part 531 is revised to read as

follows:

Authority: 5 U.S.C. 5115, 5307, and 5338; sec. 4 of Pub. L. 103-

89, 107 Stat. 981; and E.O. 12748, 56 FR 4521, February 4, 1991, 3

CFR 1991 Comp., p. 316;

Subpart A also issued under 5 U.S.C. 5304, 5305, and 5553;

section 302 of the Federal Employees Pay Comparability Act of 1990

(FEPCA), Pub. L. 101-509, 104 Stat. 1462; and E.O. 12786, 56 FR

67453, December 30, 1991, 3 CFR 1991 Comp., p. 376;

Subpart B also issued under 5 U.S.C. 5303(g), 5333, 5334(a), and

7701(b)(2);

Subpart C also issued under 5 U.S.C. 5304, 5305, and 5553;

sections 302 and 404 of FEPCA, Pub. L. 101-509, 104 Stat. 1462 and

1466; and section 3(7) of Pub. L. 102-378, 106 Stat. 1356;

Subpart D also issued under 5 U.S.C. 5335(g) and 7701(b)(2);

Subpart E also issued under 5 U.S.C. 5336;

Subpart F also issued under 5 U.S.C. 5304, 5305(g)(1), and 5553;

and E.O. 12883, 58 FR 63281, November 29, 1993, 3 CFR 1993 Comp., p.

682.

Subpart B--Determining Rate of Basic Pay

7. In Sec. 531.204, paragraph (a)(3) is added to read as follows:

Sec. 531.204 Special provisions.

(a) * * *

(3) When an employee at grade GS-1 or grade GS-2 is promoted or

transferred to a higher grade, the amount of a step increase above step

10 of the employee's grade equals the amount of the increment between

step 9 and step 10 of the grade from which promoted.

* * * * *

8. In Sec. 531.406, the introductory text to paragraph (b)(2) is

revised, paragraph (b)(3) is redesignated as paragraph (b)(4), and a

new paragraph (b)(3) is added to read as follows:

Sec. 531.406 Creditable service.

* * * * *

(b) * * *

(2) Time in a nonpay status (based upon the tour of duty from which

the time was charged) is creditable service in the computation of a

waiting period for an employee with a scheduled tour of duty when it

does not exceed an aggregate of:

* * * * *

(3) Except as provided in paragraph (c) of this section, time in a

nonpay status (based upon the tour of duty from which the time was

charged) that is in excess of the allowable amount shall extend a

waiting period by the excess amount.

* * * * *

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart A--Premium Pay

9. The authority citation for part 550, subpart A, is revised to

read as follows:

Authority: 5 U.S.C. 5304 note, 5305 note, 5541(2)(iv), 5548, and

6101(c); E.O. 12748, 3 CFR 1991 Comp., p.316.

Sec. 550.106 Annual maximum earnings limitation for work in connection

with an emergency. [Amended]

10. In Sec. 550.106, paragraph (d) is removed, and paragraph (e) is

redesignated as paragraph (d).

11. In Sec. 550.112, paragraph (j) is added to read as follows:

Sec. 550.112 Computation of overtime work.

* * * * *

(j) Official duty station. An agency may prescribe a mileage radius

of not greater than 50 miles to determine whether an employee's travel

is within or outside the limits of the employee's official duty station

for determining entitlement to overtime pay for travel under paragraph

(g) of this section except that--

(1) An agency's definition of an employee's official duty station

for determining overtime pay for travel may not be smaller than the

definition of ``official station and post of duty'' under the Federal

Travel Regulation issued by the General Services Administration (41 CFR

301-1.3(c)(4)); and

(2) Travel from home to work and vice versa is not hours of work.

When an employee travels directly from home to a temporary duty

location outside the limits of his or her official duty station, the

time the employee would have spent in normal home to work travel shall

be deducted from hours of work.

12. Section 550.171 is revised to read as follows:

Sec. 550.171 Authorization of pay for Sunday work.

An employee is entitled to pay at his or her rate of basic pay plus

premium pay at a rate equal to 25 percent of his or her rate of basic

pay for each hour of Sunday work which is not overtime work or for each

hour while in a paid leave or excused absence status on Sunday and

which is not in excess of 8 hours or, for an employee on a compressed

work schedule, not in excess of the number of hours the employee is

scheduled to work on Sunday for each regularly scheduled tour of duty

which begins or ends on Sunday.

13. Subpart D of part 550, consisting of Secs. 550.401 through

550.407, is revised to read as follows:

Subpart D--Payments During Evacuation

550.401 Purpose, applicability, authority, and administration.

550.402 Definitions.

550.403 Advance payments; evacuation payments; special allowances.

550.404 Computation of advance payments and evacuation payments;

time periods.

550.405 Determination of special allowances.

550.406 Work assignments during evacuation; return to duty.

550.407 Termination of payments during evacuation.

550.408 Review of accounts; service credit.

Authority: 5 U.S.C. 5527; E.O. 10982, 3 CFR 1959-1963., p. 502.

Subpart D--Payments During Evacuation

Sec. 550.401 Purpose, applicability, authority, and administration.

(a) Purpose. This subpart provides regulations to administer

subchapter III (except sections 5524a and 5525) of chapter 55 of title

5, United States Code. The regulations provide for Governmentwide

uniformity in making payments during an evacuation to employees or

their dependents, or both, who are evacuated in the United States and

certain non-foreign areas because of natural disasters or for military

or other reasons that create imminent danger to their lives.

(b) Applicability. This subpart applies to--

(1) Executive agencies, as defined in section 105 of title 5,

United States Code.

(2) Employees of an agency who are U.S. citizens or who are U.S.

nationals;

(3) Employees of an agency who are not citizens or nationals of the

United States, but who were recruited with a transportation agreement

that provides return transportation to the area from which recruited;

and

(4) Alien employees of an agency hired within the United States.

(c) Authority. The head of an agency may make advance payments and

evacuation payments and pay special allowances as provided by this

subpart. If the head of an agency proposes to issue regulations that

deviate from the provisions of this subpart, prior approval of the

agency regulations, as required by section 4(b) of Executive Order

10982 of December 25, 1961, must be secured from the Office of

Personnel Management.

(d) Administration. The head of an agency having employees subject

to this subpart is responsible for the proper administration of this

subpart. Payment of advance payments and evacuation payments and any

required adjustments shall be made in accordance with procedures

established by the agency.

Sec. 550.402 Definitions.

Agency means an Executive agency, as defined in section 105 of

title 5, United States Code.

Day means a calendar day, except when otherwise specified by the

head of an agency.

Dependent means a relative of the employee residing with the

employee and dependent on the employee for support.

Designated representative means a person 16 years of age or over

who is named by an employee for the purpose of caring for a dependent.

Evacuated employee means an employee of an agency who has received

an order to evacuate.

Order to evacuate means an oral or written order to evacuate an

employee from an assigned area.

Safe haven means a designated area to which an employee or

dependent will be or has been evacuated.

United States area means the several States, the District of

Columbia,the Commonwealth of Puerto Rico, the Panama Canal Zone, and

any territory or possession of the United States (excluding the Trust

Territory of the Pacific Islands).

Sec. 550.403 Advance payments; evacuation payments; special

allowances.

(a) An advance payment of pay, allowances, and differentials may be

made to an employee who has received an order to evacuate, provided

that, in the opinion of the agency head or designated official, payment

in advance of the date on which an employee otherwise would be entitled

to be paid is required to help the employee defray immediate expenses

incidental to the evacuation.

(b) Evacuation payments of pay, allowances, and differentials may

be made to an employee during an evacuation and shall be paid on the

employee's regular pay days when feasible.

(c) Special allowances, including travel expenses and per diem, may

be paid to evacuated employees to offset any direct added expenses that

are incurred by the employee as a result of his or her evacuation or

the evacuation of his or her dependents.

(d) An advance payment or an evacuation payment may be paid to the

employee, a dependent 16 years of age or over, or a designated

representative. When payment is made to someone other than the

employee, prior written authorization by the employee must have been

provided to the authorizing agency official.

(e) Any agency may make payments in an evacuation situation to an

employee of another Federal agency (or his or her dependent(s) or

personal representative) who has received an order to evacuate. When a

payment is made under this subpart by an agency other than the

employee's agency, the agency making the payment shall immediately

report the amount and date of the payment to the employee's agency in

order that prompt reimbursement may be made.

Sec. 550.404 Computation of advance payments and evacuation payments;

time periods.

(a) Payments shall be based on the rate of pay (including

allowances, differentials, or other authorized payments) to which the

employee was entitled immediately before the issuance of the order of

evacuation. All deductions authorized by law, such as retirement or

social security deductions, authorized allotments, Federal withholding

taxes, and others, when applicable, shall be made before advance

payments or evacuation payments are made.

(b)(1) The amount of advance payments shall cover a time period not

to exceed 30 days or a lesser number of days, as determined by the

authorizing agency official.

(2) Evacuation payments shall cover the period of time during which

the order to evacuate remains in effect, unless terminated earlier, but

shall not exceed 180 days. When feasible, evacuation payments shall be

paid on the employee's regular days.

(c) When an advance payment has been made to or for the account of

an employee, the amount of the advance payment shall not diminish the

amount of the evacuation payments that would otherwise be due the

employee.

(d)(1) For full-time and part-time employees, the amount of an

advance payment or an evacuation payment shall be computed on the basis

of the number of regularly scheduled workdays for the time period

covered.

(2) For intermittent employees, the amount of an advance payment or

evacuation payment shall be computed on the basis of the number of days

on which the employee would be expected to work during the time period

covered. The number of days shall be determined, whenever possible, by

approximating the number of days per week normally worked by the

employee during an average 6-week period, as determined by the agency.

Sec. 550.405 Determination of special allowances.

In determining the direct added expenses that may be payable as

special allowances, the following shall be considered:

(a) The travel expenses and per diem for an evacuated employee and

the travel expenses for his or her dependents shall be determined in

accordance with the Federal Travel Regulation (FTR), whether or not the

employee or dependents would actually be covered or subject to the FTR.

In addition, per diem is authorized for dependents of an evacuated

employee at a rate equal to the rate payable to the employee, as

determined in accordance with the FTR (except that the rate for

dependents under 11 years of age shall be one-half this rate), whether

or not the employee or dependents would actually be covered or subject

to the FTR. Per diem for an employee and his or her dependents shall be

payable from the date of departure from the evacuated area through the

date of arrival at the safe haven, including any period of delay en

route that is beyond an evacuee's control or that may result from

evacuation travel arrangements.

(b) Subsistence expenses for an evacuated employee or his or her

dependents shall be determined at applicable per diem rates for the

safe haven or for a station other than the safe haven that has been

approved by appropriate authority. Such subsistence expenses shall

begin to be paid on the date following arrival and may continue until

terminated. The subsistence expenses shall be computed on a daily rate

basis, as follows:

(1) The applicable maximum per diem rate shall be computed for the

employee and each dependent who is 11 years of age or over. One-half of

such rate shall be computed for each dependent under 11 years of age.

These maximum rates may be paid for a period not to exceed the first 30

days of evacuation.

(2) If, after expiration of the 30-day period, the evacuation has

not been terminated, the per diem rate shall be computed at 60 percent

of the rates prescribed in paragraph (b)(1) of this section until a

determination is made by the agency that subsistence expenses are no

longer authorized. This rate may be paid for a period not to exceed 180

days after the effective date of the order to evacuate.

(3) The daily rate of the subsistence expense allowance actually

paid an employee shall be either a rate determined in accordance with

paragraphs (b) (1) and (2) of this section or a lower rate determined

by the agency to be appropriate for necessary living expenses.

(c) Payment of subsistence expenses shall be decreased by the

applicable per-person amount for any period during which the employee

is authorized regular travel per diem in accordance with the FTR.

Sec. 550.406 Work assignments during evacuation; return to duty.

(a) Evacuated employees at safe havens may be assigned to perform

any work considered necessary or required to be performed during the

period of the evacuation without regard to the grades or titles of the

employees. Failure or refusal to perform assigned work may be a basis

for terminating further evacuation payments.

(b) When part-time employees are given assigned work at the safe

haven, records of the number of hours worked shall be maintained so

that payment may be made for any hours of work that are greater than

the number of hours on which evacuation payments are computed.

(c) Not later than 180 days after the effective date of the order

to evacuate, or when the emergency or evacuation situation is

terminated, whichever is earlier, an employee must be returned to his

or her regular duty station, or appropriate action must be taken to

reassign him or her to another duty station.

Sec. 550.407 Termination of payments during evacuation.

Advance payments or evacuation payments terminate when the agency

determines that--

(a) The employee is assigned to another duty station outside the

evacuation area;

(b) The employee abandons or is otherwise separated from his or her

position;

(c) The employee's employment is terminated by his or her transfer

to retirement rolls or other type of annuity based on cessation of

civilian employment;

(d) The employee resumes his or her duties at the duty station from

which he or she was evacuated;

(e) The agency determines that payments are no longer warranted; or

(f) The date the employee is determined to be covered by the

Missing Persons Act (50 App. U.S.C. 1001 et seq.), unless payment is

earlier terminated under these regulations.

Sec. 550.408 Review of accounts; service credit.

(a) The payroll office having jurisdiction over the employee's

account shall review each employee's account for the purpose of making

adjustments at the earliest possible date after the evacuation is

terminated (or earlier if the circumstances justify), after the

employee returns to his or her assigned duty station, or when the

employee is reassigned officially.

(b) The employee's pay shall be adjusted on the basis of the rates

of pay, allowances, or differentials, if any, to which he or she would

otherwise have been entitled under all applicable statutes other than

section 5527 of title 5, United States Code. Any adjustments in the

employee's account shall also reflect advance payments made to the

employee under Sec. 550.403(a) of this subpart.

(c)(1) After an employee's account is reviewed as required by

paragraph (a) of this section, if it is found that the employee is

indebted for any part of the advance payment made to him or her or his

or her dependent(s) or designated representative, recovery of the

indebtedness shall be effected by the payroll office having

jurisdiction over the employee's account, unless a waiver of recovery

has been approved. Repayment of the indebtedness may be made either in

full or in partial payments, as determined by the head of the agency or

designated official.

(2) Recovery of indebtedness for advance payment shall not be

required when it is determined by the head of the agency or designated

official that the recovery would be against equity or good conscience

or against the public interest. Findings that formed the basis for

waiver of recovery shall be filed in the employee's personnel folder on

the permanent side.

(d) For the period or periods covered by any payments made under

this subpart, the employee shall be considered as performing active

Federal service in his or her position without a break in service.

Subpart H--Back Pay

14. The authority citation for subpart H of part 550 is revised to

read as follows:

Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.

15. In Sec. 550.805, paragraph (e) is revised to read as follows:

Sec. 550.805 Back pay computations.

* * * * *

(e) In computing the amount of back pay under section 5596 of title

5, United States Code, and this subpart, an agency shall deduct--

(1) Any amounts earned by an employee from other employment

undertaken to replace the employment from which the employee had been

separated by the unjustified or unwarranted personnel action during the

period covered by the corrective action, but not including additional

or ``moonlight'' employment the employee may have engaged in both while

Federally employed and erroneously separated; and

(2) Any erroneous payments received from the Government as a result

of the unjustified or unwarranted personnel action, which, in the case

of erroneous payments received from a Federal employee retirement

system, shall be returned to the appropriate system. Such payments

shall be recovered from the back pay award in the following order:

(i) Retirement annuity payments (except health benefits and life

insurance premiums);

(ii) Refunds of retirement contributions;

(iii) Severance pay;

(iv) Lump-sum payment for annual leave (and the annual leave shall

be recredited for the employee's use under part 630);

(v) Health benefits and life insurance premiums, if coverage

continued during the period of erroneous retirement; and

(vi) Other authorized deductions.

* * * * *

PART 551--PAY ADMINISTRATION UNDER THE FAIR LABOR STANDARDS ACT

16. The authority citation for part 551 continues to read as

follows:

Authority: 5 U.S.C. 5542(c); Sec. 4(f) of the Fair Labor

Standards Act of 1938, as amended by Pub. L. 93-259, 88 Stat. 55 (29

U.S.C. 204f).

Subpart D--Hours of Work

17. In Sec. 551.422, paragraph (d) is added to read as follows:

Sec. 551.422 Time spent traveling

* * * * *

(d) Except as provided in paragraph (b) of this section, an agency

may prescribe a mileage radius of not greater than 50 miles to

determine whether an employee's travel is within or outside the limits

of the employee's official duty station for determining entitlement to

overtime pay for travel under this part. However, an agency's

definition of an employee's official duty station for determining

overtime pay for travel may not be smaller than the definition of

``official station and post of duty'' under the Federal Travel

Regulation issued by the General Services Administration (41 CFR 301-

1.3(c)(4)).

PART 591--ALLOWANCES AND DIFFERENTIALS

Subpart B--Cost-of-Living Allowance and Post Differential--

Nonforeign Areas

18. The authority citation for part 591, subpart B, is revised to

read as follows:

Authority: 5 U.S.C. 5941; E.O. 10000, 3 CFR, 1943-1948 Comp., p.

792; and E.O. 12510, 3 CFR, 1985 Comp., p. 338.

19. In Sec. 591.210, paragraph (b)(1) is revised to read as

follows:

Sec. 591.210 Payment of allowances and differentials.

* * * * *

(b)(1) Except as provided in paragraph (b)(2) of this section,

allowances and differentials shall be calculated and paid as a

percentage of an employee's hourly rate of basic pay, including a

retained rate of pay under 5 U.S.C. 3594(c) or 5363, for those hours

for which the employee receives basic pay, including all periods of

paid leave, detail, or travel status outside the allowance or

differential area. Allowances and differentials shall be included in

any lump-sum payment for accumulated and current accrued annual leave

issued under sections 5551 or 5552 of title 5, United States Code, to

an employee who separates while in a duty status in the allowance or

differential area.

* * * * *

PART 630--ABSENCE AND LEAVE

20. The authority citation for part 630 is revised to read as

follows:

Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5

U.S.C. 6133(a); Sec. 630.501 and subpart F also issued under E.O.

11228, 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart

G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.

6326; subpart I also issued under 5 U.S.C. 6332 and Public Laws 100-

566 (102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also

issued under 5 U.S.C. 6362 and Public Laws 100-566 and 103-103;

subpart K also issued under Public Law 102-25 (105 Stat. 92); and

subpart L also issued under 5 U.S.C. 6387 and Public Law 103-3 (107

Stat. 6, 23).

Subpart B--Definitions and General Provisions for Annual and Sick

Leave

21. In Sec. 630.201, paragraph (b)(7) is redesignated as paragraph

(b)(8), and a new paragraph (b)(7) is added to read as follows:

Sec. 630.201 Definitions.

* * * * *

(b) * * *

(7) Uncommon tour of duty means a tour of duty that exceeds 80

hours of work in a biweekly pay period, including hours of actual work

plus hours in a standby status for which the employee is compensated by

annual premium pay under 5 U.S.C. 5545(c)(1) and part 550 of this

chapter.

* * * * *

22. Section 630.205 is removed and reserved.

Sec. 630.205 [Reserved]

23. Section 630.210 is revised to read as follows:

Sec. 630.210 Uncommon tours of duty.

(a) An agency may require that an employee with an uncommon tour of

duty accrue and use leave on the basis of that uncommon tour of duty.

The leave accrual rates for such employees shall be directly

proportional (based on the number of hours in the biweekly tour of duty

and the accrual rate of the corresponding leave category) to the

standard leave accrual rates for employees who accrue and use leave on

the basis of an 80-hour biweekly tour of duty. One hour (or appropriate

fraction thereof) of leave shall be charged for each hour (or

appropriate fraction thereof) of absence from the uncommon tour of

duty.

(b) When an employee is converted to a different tour of duty for

leave purposes, his or her leave balances shall be converted to the

proper number of hours based on the proportion of hours in the new tour

of duty compared to the former tour of duty.

[FR Doc. 94-31822 Filed 12-27-94; 8:45 am]

BILLING CODE 6325-01-M